Justice Department to monitor new anti-abortion bills in state legislatures

Upcoming state-level pushes to further restrict abortion access will be on the radar of the US Justice Department, top DOJ officials said Monday as they touted the work the Biden administration has sought to do to shore up abortion access in the wake of the Supreme Court’s Roe v. Wade reversal last year.

“We’ve obviously been very active in monitoring what’s happening in the states and locally, and given that most state legislatures now are coming back into session, we’ll be continuing to do so and looking at any laws that may get passed that infringe on federal protections,” said Associate Attorney General Vanita Gupta, who leads a department task force on reproductive rights that was launched after the Supreme Court’s decision.

She was joined by Attorney General Merrick Garland to speak briefly to reporters at the top of a task force meeting, timed to the 50th anniversary of the Roe decision, which protected abortion rights nationwide before the ruling was overturned by the Supreme Court in June.

Several states had restrictive laws and bans already on the books that went into effect after the ruling – though some were blocked in state court in lawsuits challenging them under state constitutions.

In the coming weeks, however, many state legislatures will be reconvening for the first time since the Dobbs decision and anti-abortion lawmakers are expected to further tighten up laws around the procedure.

“Many of us feared that that decision would deal a devastating blow to reproductive freedom in the United States, that it would have an immediate and irreversible impact on the lives of people across the country, and that the greatest burdens would be felt by people of color. And those of limited financial means,” Garland said. “Unfortunately, that is exactly what has happened.”

The options the federal government have for mitigating the effects of the June decision are limited. The Supreme Court’s conservative majority said in the ruling that the US Constitution did not guarantee a right to abortion, freeing the states to limit or fully outlaw the procedure.

Garland and Gupta pointed to a lawsuit that the Justice Department brought against Idaho for its extremely strict abortion ban, which was partially blocked by a federal judge last year to the extent it prevented women from receiving abortion care in medical emergencies. The judge agreed with the DOJ’s arguments that federal law protected abortion access in those situations, but a judge in Texas – in a separate case brought by Texas to challenge the Biden administration’s guidance – has disagreed with that interpretation.

On Monday, the DOJ leaders also pointed to the counsel the department has given agencies to bolster reproductive access – including advice on a Department of Veterans Affairs policy to offer abortion services at its medical facilities in certain circumstances, and an internal executive branch opinion interpreting federal law as allowing the mailing of abortion pills.

The former policy is subject of litigation and the latter move may be targeted by anti-abortion state legislatures, which are expected to act aggressively to stymie the ability of residents to obtain medication abortion. Some state lawmakers have floated clamping down on websites and other modes of communication that would assist women seeking abortions.

“Every day that passes there are still more reports of new efforts not only to restrict access to abortion, but also to chill and intimidate women from seeking abortion and other reproductive health services even where they remain lawful,” Gupta said.